Jameel Jaffer writes: To anyone who criticized the National Security Agency’s phone-records dragnet over the last nine months or so, the American intelligence community had this stock response: all three branches of government signed off on it.

The intelligence community was right, at least in a sense, but what it presented as a defense of the surveillance program was actually an indictment of our oversight system. What it presented as a defense of the program was actually a scandal.

In today’s New York Times, Charlie Savage reports that the administration has come to the belated realization that its intelligence interests can be accommodated without placing hundreds of millions of people under permanent surveillance. This is to the good, of course. But if the administration is right that the dragnet was unnecessary, we should ask how all three branches of government got it so wrong.

The answer, in a word, is secrecy. When intelligence officials proposed the dragnet, there was no one on the other side to explain that the government’s goals could be achieved with less-intrusive means. There was no one there to mention that the law the government was invoking couldn’t lawfully be used to collect call-records. There was no one there to mention that the bulk collection of call records was unconstitutional. [Continue reading…]